NEW YORK (Jul. 23)
Jewish groups are dismayed at the recent New Jersey Supreme Court ruling that government regulation of the kosher food industry violates the constitutional separation of church and state.
The decision directly affects only New Jersey, but is expected to have wide ramifications in the 16 other states in which the government monitors the preparation and sale of kosher food. Similar suits are likely to be brought in many of those other states.
In a 4-3 decision, the New Jersey court found that while the state is compelled to prevent fraud, the regulations “plainly violate” both state and federal constitutional prohibitions against the establishment of religion.
Justice Alan Handler, writing for the majority, said that the current regulations require government involvement in areas that should not be under its purview.
The regulations allow the state to determine whether food is prepared “in strict compliance with what the state itself believes to be the laws and customs of the Orthodox Jewish religion.”
In that respect, continued Handler, “the regulations do not police the nutritional, quality or sanitary purity of kosher food, but only its religious purity. In doing so, they create an unconstitutional entanglement of government and religion.”
This entanglement is illustrated by the fact that the people hired to enforce the regulations are clerical leaders, according to the decision. The chief of the state’s Bureau of Kosher Enforcement is an Orthodox rabbi and the bureau’s advisory committee is made up of 10 rabbis–one Conservative and the rest Orthodox.
THE STATE MUST ASSUME ‘A RELIGIOUS ROLE”
Any disagreements that involved the regulations “call inescapably on the state to assume a religious role,” wrote Handler.
The suit that led to the decision was filed by a kosher market, Ran-Dav’s County Kosher, in Linden, N.J. The market filed suit after New Jersey’s Bureau of Kosher Enforcement charged its owner, Arthur Weisman, with violations on five inspections between 1987 and 1989.
A trade group, the New Jersey Alliance of Kosher Caterers, joined Weisman in the suit.
Ran-Dav’s owner claimed that his products were kosher according to the standards set by their own supervising Orthodox rabbi, Harry Cohen.
Some observers said the court’s ruling opens the door to the development of new standards of kashrut, such as Conservative and hasidic, in addition to the “mainstream Orthodox” standard regulated by the state.
But religious groups, and not just the Orthodox, take issue with the decision.
Though the state law defined kashrut according to “Orthodox Judaism,” the regulations never led to any interdenominational clashes, said Rabbi Alan Silverstein, incoming president of the New Jersey region of the Rabbinical Assembly, part of the Conservative movement.
“The overall value of this state protection has been to the benefit of the consumer who wants to buy kosher food. The people who suffered were businesses in violation,” he said.
Friend-of-the court briefs supporting the state’s position, were filed on behalf of the regional chapters of Orthodox, Conservative, Reform and Reconstructionist movements, and by the American Jewish Congress.
Agudath Israel of America, an Orthodox group, expressed “deep dismay” over the ruling and called it “an aberration.”
“All other courts that have considered such statutes have concluded that they are just like any other consumer protection measure,” said David Zwiebel, Agudah’s general counsel.
And according to Julius Berman, chairman of the Joint Kashrus Commission of the Union of Orthodox Jewish Congregations, “We are greatly troubled that protection for the kosher consumer has been put into question.
“Kosher consumers are entitled to no less protection than the general consuming public. It is no different than ensuring that a Wheaties box on the supermarket shelf contains Wheaties and not Cheerios,” said Berman.
Nancy Erickson, a spokesperson for the New Jersey Department of Consumer Affairs, said that observers of kashrut will be protected by the state’s consumer fraud laws until new kashrut regulations are developed.
New regulations may, for example, require vendors of kosher food to provide a list of ingredients to consumers and to declare which standard of kashrut they adhere to, she said.
The New Jersey ruling “reminds us, once again, that the prime responsibility for insuring kashrut does not lie with the state,” said Marc Stern, co-director of the American Jewish Congress’ legal department. “The state can only go so far in regulating religious responsibilities.”
Besides New Jersey, the other states laws governing kashrut are: Arkansas, California, Connecticut, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, New York, Ohio, Pennsylvania, Rhode Island and Texas.
There are similar regulations in some municipalities, including Baltimore, where the laws are being challenged in federal court, and in several towns in Florida.